R v TI [2017] ACTSC 129

See [38] to [46] below.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - breaches of good behaviour order by non-compliance with supervision requirements constituted by minimal engagement with rehabilitation programs and unauthorised departure from ACT - subsequent commission of family violence offences - "sudden-death" approach of Corrective Services to breaches of good behaviour orders.

Crimes (Sentence Administration) Act 2005 (ACT), s 110(2)

R v TI [No. 3] [2015] ACTSC 405

Legal Aid ACT (Offender)

SCC 246 of 2014; SCC 247 of 2014; SCC 248 of 2014; SCC 221 of 2015; SCC 240 of 2015; SCC 241 of 2015

1. On 6 December 2015, I sentenced TI for a total of 31 offences, almost all committed by him as a juvenile (R v TI [No. 3] [2015] ACTSC 405). The sentence included terms of imprisonment, the bulk of which was to be suspended in May 2016 in conjunction with TI entering into good behaviour undertakings in relation to the outstanding sentences.

2. In September 2016, information was provided alleging that TI was in breach of his good behaviour undertakings in several respects arising from his failure to accept supervision and failure to obey the directions of his supervisor. Eventually I issued a warrant for TI's arrest, in circumstances about which I shall have more to say shortly.

3. Two and a half months after the warrant was issued, TI was arrested for further offences committed in December 2016. He has been dealt with in the Magistrates Court, specifically through the Galambany Circle Sentencing process, and is now before me to be dealt with for breach of my earlier orders.

4. The sentences I imposed in December 2015 can for present purposes be divided into three categories:

(a) for 13 of the earlier offences, I simply recorded convictions and imposed 12month good behaviour orders, all of which were breached as already mentioned;

(b) the next category of offences is those for which prison terms were imposed, and served, before TI was released from custody in May 2016. There is no further action required in relation to those matters;

(c) finally, there is the category of offences for which prison terms were imposed, being terms which were either partly or fully suspended when TI was released in May 2016 (there are 12 of those offences).

5. The offences for which the sentences consisted of the recording of convictions and the making of 12-month good behaviour orders were committed during seven separate incidents between September 2012 and February 2013, and consisted of four domestic burglaries, two associated thefts, four offences of taking or riding in stolen motor vehicles, and three offences transferred from the Magistrates Court, being one of unlicensed driving, and two of minor theft.

6. The offences for which TI was sentenced to prison terms that were partly or fully suspended when he was released from prison in May last year were:

(a) one each of aggravated burglary and attempted burglary, and two burglaries;

(b) one each of damage property, drive a stolen motor vehicle, common assault, and minor theft (the last two being transferred from the Magistrates Court); and

(c) three offences of act of indecency and one act of indecency in the presence of a person under 16 years.

7. Most of them, including the indecency offences, were committed in April 2014, with the most recent three offences committed in October 2015. TI had managed to avoiding offending while on bail for nearly 16 months between those two periods.

8. The facts of all those offences were set out in my earlier sentencing remarks, and I see no need to repeat them now, except to note that the indecency offences, which TI continues to deny, involve TI in public places, approaching young women (or in one case a 13-year-old girl). In three of the cases he exposed himself to the victim and asked her to engage in sexual activity with him; in the other case he grabbed the victim's buttocks as he rode past her on his bicycle, before committing one of the exposure offences.

9. It is agreed that when TI was released in May last year, the term remaining to be served from the 2015 sentences was two years and eight months (32 months).

10. The new offences that were committed in breach of all the good behaviour orders I made last year involved one common assault and one offence of damaging property. They were committed during an incident involving TI and his former partner, who is the mother of two his children. TI's former partner had gone to see him, and they had an argument during which he assaulted her, including by slapping her in the face and dragging her by her hair. TI and the victim got into her car, which contained their two children, and she agreed to drive back to her home. During the drive, TI hit the front windscreen and it broke.

11. TI was sentenced to three months imprisonment for the assault and four months for the damage property offence, to be served concurrently from 26 December when he was arrested. Those sentences were completed on 25 April this year.

12. As well as material that was before me when I originally sentenced TI, the following material is in evidence before me:

(a) the two documents containing information about the good behaviour order breaches;

(b) the statement of facts for the recent offences dealt with in the Magistrates Court;

(c) a criminal history;

(d) a table containing information about the sentences I imposed in 2015;

(e) a pre-sentence report dated 6 March this year; and

(f) a CADAS report dated 6 April this year;

13. I have also, of course, had access to my earlier sentencing remarks.

14. Unfortunately, the breach information described TI's breach, but provided only the barest minimum of information about TI's compliance with his supervision requirements before the breach, and effectively no information at all about what support and rehabilitation opportunities had been offered to TI during the four months before he breached the good behaviour order.

15. Accordingly, I asked the DPP to arrange for a Corrective Services officer to attend court with TI's file, to give oral evidence about those matters before I finalised any resentence. That evidence was given by Adam O'Day today.

16. Mr O'Day said that until he breached the good behaviour by going to Yass (that is, leaving the ACT without permission), and then missing a Smart Recovery session because he could not get back from Yass, TI had attended 22 appointments with his Corrective Services supervisors (seen as a good attendance record) but that his engagement with the various programs to which he had been referred was, in Mr O'Day's words, minimal. TI had begun the Adult Sex Offender Program, but had been referred to a group described as "deniers" because he continued to deny the sexual offences of which he was found guilty by a jury; however, he had been exited from the deniers group after only two or three sessions because he had refused to engage in the process.

17. TI had also been attending a Smart Recovery Alcohol and Drugs Program, but had apparently not engaged particularly well with that group either, and was exited from that group after the failure to attend that I have already mentioned.

18. TI had also submitted to urinalysis on four occasions, the first one two months after he was released from custody: on all four occasions his tests were positive for cannabis, but only the first test showed methylamphetamine use as well.

19. Finally, I note that TI has engaged with the Winnunga Men's Group: it is unfortunate that there was no information before me about the extent and value of that engagement.

20. Mr O'Day also mentioned, in the context of TI's failure to engage with Corrective Services, the fact that TI was sometimes accompanied to appointments by a support person from the Aboriginal Legal Service, and, in Mr O'Day's words, seemed happy for others to advocate for him. It is not absolutely clear to me whether this involved support people, in effect, making TI's excuses for him, in terms of compliance with Corrective Services requirements, or whether TI also expected or permitted such people to speak on his behalf in the course of his participation in the programs. I entirely understand that it may be helpful for a relatively inarticulate and young Aboriginal man to have help in dealing with the authorities; on the other hand, to the extent that TI is engaged in rehabilitative activity, it is not clear that having a support worker participate on his behalf is particularly productive.

21. It seems likely to me that TI may receive considerably more benefit from one-on-one counselling, especially in relation to his ongoing substance abuse. I appreciate that this is, obviously, initially more resource-intensive than providing rehabilitation help in a group setting, but it may in the long run be a more efficient use of resources.

22. In the course of discussion about Mr O'Day's evidence, it emerged that the circumstances surrounding TI's initial breach of the good behaviour orders were significantly unfortunate. The breach documents were originally signed on 29 September 2016. They noted that multiple efforts had been made to locate TI, but that his mother and his support worker had had no contact with him since 25 September, and sought the issue of a warrant. Before I decided to issue a warrant on the basis of that information, a further breach document was provided, showing a date of 4 October 2016 and reporting a further conversation by Corrections officers with TI's mother, who had advised that TI was no longer "residing at her address". The document repeated the request for a warrant to be issued. On the basis that no-one could contact TI to advise him of the issue of a summons, I concluded that it was appropriate to issue the warrant.

23. TI's mother has reported to TI's representative that on 4 October (the date that the supplementary breach information was issued) she took TI to Corrective Services, but they were told that it was too late and that the updated breach report had also been finalised. It seems that, during the next few days, TI and his mother attended the City Police Station on several occasions in the hope of dealing with the warrant. However, in fact, the warrant was not issued until a week later, 11 October 2016, by which stage TI and his mother had, not unreasonably, stopped attending the police station. As already noted, TI then remained at large until he was arrested in connection with the new offence on 26 December.

24. Certainly it is true that TI, although aware of the probable existence of the warrant for two and a half months after it was in fact issued, did not take any further constructive steps to deal with the warrant, but instead succumbed to stress and lapsed into increased substance abuse.

25. In the circumstances as described, however, it is easy to understand why this might have happened. If the breaches as described by Corrective Services were the only relevant breaches of my good behaviour orders, it might be that the appropriate response would simply be to re-sentence TI to a further good behaviour order in similar terms and give him another chance to engage more seriously with the rehabilitation support that is offered to him. However, the fact that he has, during the term of the good behaviour order, also committed two further significant offences in my view requires some further response.

26. I should at this stage, however, record my disappointment at what appears to be Corrective Services "sudden-death" approach to breaches of good behaviour orders. This is not the first time in my experience in which offenders who have breached the good behaviour orders in relatively minor ways have been cast adrift when they seek to re-engage with Corrective Services before court proceedings begin. No doubt there are good reasons for ensuring that there are consequences for compliance failures, but I am not convinced that a system that operates to deprive offenders of Corrective Services assistance at the very point at which they are struggling to maintain their compliance, but have not entirely abandoned the effort, is necessarily rational.

27. In this matter, I have also had regard again to TI's subjective circumstances.

28. TI's background was described at some length in my original sentencing remarks. In short, he was born to a mother who was a very young drug abuser, and was early on adopted by a relative. She and her family, who TI refers to as his mother these days, provided a safe and happy home for him, and he maintains close relationships with all members of his adopted family. However, the discovery of his background, and that he was adopted, when he was 12 years old, seems to have disturbed him. From that point, he began using alcohol and a variety of illicit drugs, misbehaving and, by the time he was 15, committing offences.

29. His adoptive family supported him through the long bail period during which he avoided re-offending, and continues to support him, and I note that it is his adopted mother who I have referred to as trying to help him re-engage with Corrective Services.

30. TI now has three children to the victim of the most recent offences.

31. TI told the CADAS reporter that he has assaulted his former partner in an attempt to deal with the developing conflict between her and his new partner. He admitted having been abusing drugs in the period leading up to the new offences, but it was not clear whether he claimed to have been under the influence of alcohol or drugs at the time of the offences.

32. TI says he has abstained from alcohol and drug use since being remanded in custody in December last year, and told the CADAS reporter he hoped to maintain his abstinence when released. The CADAS reporter suspects, however, that TI is underestimating the challenges he will face in maintaining this resolve in the community. It seems that so far he has not made any serious attempts at alcohol or drug rehabilitation, although one cannot discount the abstinence in the AMC.

33. When I sentenced TI in 2015, I noted that general deterrence was relevant in relation to all his offences, and also that he was still in need of personal deterrence. TI's earlier offences generally seem to have involved him intending to commit an offence of a relevant kind and going out looking for an appropriate opportunity.

34. Some minor comfort may be found at this stage in the fact that TI's re-offending is of an entirely different kind from any of those offences for which I sentenced him, and in particular does not appear to have been intended until the particular circumstances arose. This is not to suggest that family violence offences are less serious than the earlier offences, only that for his few months in the community, TI does seem to have been deterred from continuing his earlier pattern of offending.

35. The prosecutor sought the imposition of the outstanding prison sentences, although on the basis that a date could then be set as a date on which the remaining sentences would be suspended. How an "imposition" under s 110(2)(a) of the Crimes (Sentence Administration) Act 2005 (ACT) on that basis differs from a "re-sentence" under s 110(2)(b) to the same effect is unclear, but need not be pursued at this stage.

36. Defence counsel noted that TI accepted that he was likely to serve some further prison time, but submitted that there should be some concurrence between the older sentences and the sentences he has just served for the new offences.

38. First, I find that you breached the good behaviour orders made in December 2015 in connection with a total of 25 offences. In relation to the 12-month good behaviour orders made in relation to 13 offences (those which had just a good behaviour order attached to them), being CH2014/640, CH2014/641, CH2014/642, CH2014/643, CH2014/644, CH2014/645, CH2014/647, CH2014/646, CH2014/649, CH2014/648, CH2014/650, CH2014/661 and CH2014/662, I cancel those good behaviour orders and take no further action on those matters. That means that those offences have now been finally dealt with.

39. In relation to the other 12 good behaviour orders made in connection with suspending sentences, I cancel those good behaviour orders and I re-sentence you as follows.

40. First, I note the convictions that have already been recorded for all those 12 offences.

41. Next, I shall re-sentence you in the same terms as originally imposed for all those other sentences, but with new dates that I'll need to specify in a minute. In general, however, the total period of the remaining sentences, which was 41 months, has been backdated to take account of the period served on those sentences before you were released in May last year, 9 months (so that takes it down to the 32 months that has been agreed as outstanding on your offences). I have also backdated it to take account of the last 2 months of the Magistrates Court sentence, so as at 25 April, when you finished your Magistrates Court sentences, there were a total of 30 months left to serve on those earlier offences.

42. I assume, since most of the offences that I have re-sentenced you for were committed when you were a young offender, that there is still no scope for setting a non-parole period, so instead the sentence will again be suspended, but not until you have cleared off another seven months of the total sentence, that is, seven months from 25 April just gone until 25 November this year.

43. I understand your view, TI, that you had done everything that Corrective Services required of you by turning up for your appointments, but the problem is that simply turning up isn't going to help you work out how to avoid falling back into serious substance abuse and re-offending in the future. Accordingly, I recommend that you consider having a serious go at rehabilitation while you are in custody for the next six and a half months odd, especially in relation to alcohol and drug abuse. It may be, given what I have heard today, that your time will be better spent trying to deal with the substance abuse than in continuing to resist the Adult Sex Offender Program. Then, when you are released, you will have 23 months and 8 sentences still to complete.

44. In relation to that suspension, I now order that when you are released you sign undertakings to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act. In relation to the sentences for the juvenile offences, being CH2014/442, CH2014/450, CH2014/451, CH2014/452 and CH2014/375, that will be an 18-month good behaviour order, and I am not sure if that involves supervision, or notionally involves supervision, from Juvenile Justice, but the people who do these forms will work that out.

45. For the adult offences, you have got three of the adult offences still left, being the three that were committed after you had been on bail for all that time, for those there will be a two-year good behaviour order.

46. Each good behaviour order is subject to the conditions:

(a) that for such period not exceeding 18 months or 2 years depending which offences they relate to, as your supervising agency considers necessary, you accept supervision and obey all reasonable directions of the relevant DirectorGeneral or delegate; and

(b) that you undertake such counselling, courses, programs or treatments as directed by your supervising officer.

47. I'm not going to order another try at the Adult Sex Offender Program for the time being, but I do recommend that Corrections consider, either during the next few months or when you are released, whether they could provide you with some one-on-one counselling addressing any of your areas of need. In that context, I note that your most recent offences, those committed in December last year, also raise the need for family violence to be addressed. In fact, it may be at this stage that addressing the family violence issue is more significant than addressing the sexual behaviours that you continue to deny.

48. You will be given a written copy of the good behaviour orders, and they will be read to you by the court officials. In short, it means that for two years after you are released, you need to keep out of trouble, keep in contact with your supervisors, and, if appropriate, cooperate in and take part in any of the programs or treatments or courses that they recommend.

49. Now, in saying that, TI, I should add that you need to understand that the job that is given to Corrective Services is to try and help you with whatever it is that leads you to commit offences, in the hope that, in due course, you will be able to avoid committing offences, so that in the future you can settle down in the community, with a job, and perform, especially, your very important role as a father.

50. Now I should explain, and I think I've mentioned this briefly but I'll just say it again because I've made the two different good behaviour orders, if you can behave yourself for 18 months after you are released, then you will have cleared off all your juvenile offences, then after a further 6 months of good behaviour, you will have cleared off all the offences committed so far. So that would give you then a good opportunity to start afresh and make a good life for yourself.

51. On the other hand, if you commit another offence during that two-year period after you are released, or if you otherwise breach your undertakings, you could find yourself back in court yet again to be re-sentenced for some of these offences. Again, TI, as you understand, you could find yourself serving a further part of that sentence in fulltime custody.

52. Now, if you have got any further questions about that, you might be able to ask Ms Taylor.

I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.